Opinion

When I read in Lord Justice Scott Baker’s Review of the UK’s Extradition Arrangements that he considered that, apart from the issue of proportionality, the European Arrest Warrant (EAW) scheme worked reasonably well, I baulked. However, reading on, I came to the view that the report is a mixed bag which has some negative elements but also comes to some positive conclusions.

Regarding conviction cases, Scott Baker sensibly recommends that the UK courts should have the option to decline to give effect to an EAW if the outstanding sentence is more appropriately served in the UK. Also positive is his conclusion that surrender should be refused if the requested person is a British resident or national or staying in the UK and the sentence is less than 12 months.

Concerning proportionality, I applaud Scott Baker’s recommendation that the EAW scheme should require a test which takes into account inter alia the seriousness of the offence, the prospects of a conviction, the harm caused by the offence, the likely sentence, and the age and previous convictions of the requested person.

Additionally, Scott Baker meets defence lawyers’ concerns regarding dual representation. His conclusion is that a requested person should be represented both here and in the requesting state. Defence lawyers have found that it greatly assists to have lawyers working for the requested person in both jurisdictions.

I also welcome Scott Baker’s observation which reinforces the position that the prosecuting authorities have an obligation to disclose material that may undermine an extradition request. Furthermore, he wisely observes that the inflexible time limit for lodging appeals is operating to cause injustice, and recommends an extension to 14 days.

Also of note is the recommendation that lawyers who wish to engage in extradition work undergo mandatory training. This is appropriate given that the Crown Office has a specialised unit and the sheriffs who hear extradition cases are specialised in this area of law.

Unfortunately, Scott Baker fails to address a number of matters. First, the EAW scheme is flawed in that a discharge in respect of a warrant in one member state does not prevent arrest on a EAW in another member state. So, for example, if a Polish requested person was discharged in this country and went to France, he could still be extradited back to Poland from France. Mutual trust and co-operation ought to be a two-way street, so there needs to be a change at European level to prevent this type of thing occurring.

Secondly, I do not agree with his conclusion that there should not be a prima facie case requirement. It is difficult to see how the disruption which extradition entails can be justified without a prima facie case.

Thirdly, in relation to the human rights bar (ss 21 and 87 of the Extradition Act 2003), Scott Baker states that in the absence of proof to the contrary, it must be assumed that a category 1 territory will comply with its obligations under the European Convention. Furthermore, it will require clear and cogent evidence to establish that in a particular case the extradition involves a contravention of human rights. He concludes that ss 21 and 87 do not operate so as to cause manifest injustice or oppression.

The difficulty in practice of placing such a strong evidential burden upon a requested person is that it almost impossible to adduce the kind of evidence that is required. Often the requested person doesn’t even have a lawyer in the requesting state. There is an imbalance in the resources available. The Crown can, of course, get information from the requesting state and EUROJUST (an agency of the European Union providing co-operation in criminal matters).

In relation to human rights cases, the legal tests have generally been set too high. Take, for example, article 8. It is nigh on impossible for a requested person to demonstrate an “extraordinarily compelling feature”, which is the test set out by the Supreme Court in the Norris case.

Legal tests generally are too high in extradition cases, such as the oppression test in “passage of time” cases. Numerous requested persons have been returned many years after relatively minor offences, causing considerable disruption to their families. Lord Justice Scott Baker and his team have assiduously considered the issues regarding the EAW scheme. However, in my view, an opportunity has been missed to diagnose all the relevant problems.